1. This Bench of the Appeals Chamber of the International Criminal Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 (respectively, “Bench” and “International Tribunal”) is seized of the “Application of Haradin
Bala for Leave to Appeal Against Decision on Provisional Release”, filed by counsel
for Haradin Bala (respectively, “Defence” and “Bala”) on 23 September 2003 (“Application
for Leave to Appeal”), pursuant to Rule 65(D) of the Rules of Procedure and Evidence
of the International Tribunal (“Rules”).

2. The Application for Leave to Appeal challenges a decision issued by Trial
Chamber I on 16 September 2003, rejecting Bala’s request for provisional release
(“Impugned Decision”).1 In the Impugned Decision,
the Trial Chamber denied provisional release, inter alia, on the following
grounds: (i) that “the [satisfactory] health condition of the Accused does not
warrant his release”; (ii) that “the Accused is charged with participating in
serious crimes ”, and that, “if convicted, the Accused is likely to face long
prison terms and that he therefore has a stong incentive to flee”; (iii) that
“no evidence has been adduced which would show that UNMIK would be able to provide
guarantees that the Accused, if provisionally released, would be available for
trial”; and (iv) that “the Chamber is not satisfied that if released, the Accused
would appear before the Tribunal”.2

3. With respect to the procedural background, the Bench granted the Office of the
Prosecutor (“Prosecution”) leave to file a joint response to the Applications for
Leave to Appeal by all three Accused, and an extension of time, on 30 September
2003.3 The Prosecution accordingly
filed its response on 6 October 2003 (“Response”).4
The Defence replied on 10 October 2003 (“Reply”).5

4. The question before the Bench is whether “good cause” pursuant to Rule 65(D)
Sentence 1 for granting leave to pursue the appeal to the full Appeals Chamber has
been shown.

II. Applicable Law

5. Rule 65(B) of the Rules sets out the basis upon which a Trial Chamber may order
the provisional release of an accused. It states that provisional release “may be
ordered by a Trial Chamber only after giving the host country and the State to which
the accused seeks to be released the opportunity to be heard and only if it is
satisfied that the accused will appear for trial and, if released, will not pose
a danger to any victim, witness or other person” (emphasis added).

6. Rule 65(D) of the Rules provides, inter alia, that leave to appeal a Trial
Chamber’s decision on provisional release may be “granted by a bench of three judges
of the Appeals Chamber, upon good cause being shown”. According to the settled jurisprudence
of the Appeals Chamber, there is “good cause” within the meaning of Rule 65(D) for
granting leave to appeal when it appears that the Trial Chamber “may have erred”
in rendering the impugned decision.6

7. A Trial Chamber “may have erred” when it did not apply the law correctly or failed
to take into account and assess all the decisive facts of a case.

8. Article 21(3) of the Statute of the Tribunal, adopted by Security Council Resolution
827 of 25 May 1993 (“Statute”), mandates that “the accused shall be presumed innocent
until proved guilty”. This provision both reflects and refers to international standards
as enshrined, inter alia, in Article 14(2) of the International Covenant
on Civil and Political Rights (“ICCPR”) of 19 December 1966 and Article 6 (2) of
the Convention for the Protection of Human Rights and Fundamental Freedoms of 4
November 1950 (“ECHR”).

9. Furthermore, Article 9(3) of the ICCPR emphasizes inter alia that:
“it shall not be the general rule that persons awaiting trial shall be detained
in custody, but release may be subject to guarantees to appear for trial”. Article
5 (3) of the ECHR provides inter alia that: “everyone arrested or detained…
shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial”.

10. These human rights instruments form part of public international law.

11. The ICTY is entrusted with bringing justice to the former Yugoslavia.
First and foremost, this means justice for the victims, their relatives and other
innocent people. Justice, however, also means respect for the alleged perpetrators’
fundamental rights. Therefore, no distinction can be drawn between persons facing
criminal procedures in their home country or at the international level.

12. Rules 65 (B) and (D) of the Rules must therefore be read in the light of
the ICCPR and ECHR and the relevant jurisprudence.

13. Moreover, when interpreting Rule 65(B) and (D) of the Rules, the general principle
of proportionality must be taken into account. A measure in public international
law is proportional only when it is (1) suitable, (2) necessary and when (3) its
degree and scope remain in a reasonable relationship to the envisaged target. Procedural
measures should never be capricious or excessive. If it is sufficient to use a more
lenient measure than mandatory detention, it must be applied.7

III. Discussion

14. In the Application for Leave to Appeal, the Defence relies on four grounds of
appeal. They will be dealt with in turn in the following sections. Additionally,
in his Reply, Bala joins the ground of appeal advanced by Limaj and Musliu, his
co-accused, that the Trial Chamber erred in not holding a hearing on the issue of
provisional release.8 This additional
ground will be dealt with as Ground 5 in section (e) below.

(a) The Trial Chamber erred in not placing the burden of proof on the Prosecution
to demonstrate that the accused is not entitled to provisional release
(Ground 1)

15. According to the Defence, international humanitarian law and principles enshrined
in the ICCPR and the ECHR impose upon the Prosecution the burden of proof in justifying
detention pending trial before this International Tribunal. The Defence adds that
the detention should be justified by clear and convincing evidence. In support of
its view, the Defence quotes several cases from the Human Rights Committee, the
European Court of Human Rights (“ECourtHR”), the United Kingdom, and the United
States. It relies as well on Articles 60(2) and 58(1) of the Statute of the International
Criminal Court (“ICC”).

16. The Prosecution submits that the Defence’s interpretation of international law
is wrong and that the Impugned Decision is fully consistent with the settled jurisprudence
of this International Tribunal, in which it is well established that the burden
of proof rests on the accused. It recalls that, unlike national jurisdictions, the
International Tribunal lacks a police force and has to rely on States to monitor
and enforce conditions of release. It submits that the Trial Chamber’s approach
is also consistent with its obligation to conduct a fair evaluation of the circumstances
and interests at stake. With respect to the ICC Statute, the Prosecution observes
that it is not binding on the International Tribunal and it does not support the
imposition of a burden of proof on the Prosecution to justify pre-trial detention.

17. It is the Bench’s view, contrary to the argument put by the Defence, that the
Trial Chamber did not err in not imposing the burden on the Prosecution to demonstrate
that provisional release was inappropriate. First, Rule 65(B) does not place the
burden of proof on the Prosecution. Pursuant to that Rule, the Trial Chamber was
required to determine whether it was "satisfied" that Bala, if released, would appear
for trial. After taking into account the information submitted to it by the parties
and weighing all the relevant factors, it held that it was not satisfied. There
is thus no basis for holding that, by not placing the burden of proof on the Prosecution, the Trial Chamber erred in its application of Rule 65(B).

18. For the foregoing reasons, the Bench finds that Ground 1 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under Rule
65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(b) The Trial Chamber erred in denying provisional release on a ground (the alleged
inability of UNMIK to control the borders of Kosovo) which would require the denial
of provisional release to any accused (Ground 2)

19. The Defence claims that the Trial Chamber failed to consider appropriate conditions
of release, and denied the request for provisional release on a ground that would
require denial in every case, i.e. the inability of UNMIK to control Kosovo’s borders. The Defence adds that the Prosecution was unable to point to any facts relating
to the accused personally.

20. The Prosecution responds that the seriousness of the charges against Bala, which include the murder of ten men in addition to other serious crimes, warrant
his continued detention. The Prosecution notes that the Trial Chamber’s reliance
on the representations of UNMIK as one important factor in its decision was entirely
reasonable, and there is no basis for the Defence’s assertion that it was a factor
that should have been overlooked. The Prosecution states that it has never advocated
a policy of “blanket denial” of provisional release and argues that the specific
facts of this case justified the denial.

21. Pursuant to Rule 65(B), the Trial Chamber was specifically required to determine
whether Bala, if released, will flee or not. The inability of UNMIK to control the
borders of Kosovo is therefore a highly relevant fact. By contrast, the consequences
of this inability in other similar applications, are irrelevant to the Trial Chamber’s
determination of this particular case, and cannot prevent the Trial Chamber from
taking into account a decisive factor in determining whether Bala, if released,
will flee or not. The Trial Chamber, therefore, did not err in relying on this fact.

22. For the foregoing reasons, the Bench finds that Ground 2 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under Rule
65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(c) The Trial Chamber erred in relying on the seriousness of the charges against
Bala to deny provisional release without considering his personal circumstances
(Ground 3)

23. First of all, the Defence submits that the Trial Chamber erred in focusing
on the seriousness of the charges against Bala and ignoring his personal circumstances. The Defence observes that the Trial Chamber departed from the practice of the
International Tribunal according to which individuals accused of more serious crimes
(such as Biljana Plavsic and Dragan Jokic) were granted provisional release.

24. The Prosecution responds that the jurisprudence of the International Tribunal
is fully consistent with international law, and that the Trial Chamber considered
the seriousness of the charges and the possibility of a lengthy sentence in conjunction
with several other factors. It observes that in the case of Plavsic, the Trial Chamber
considered among the factors favoring release: her advanced age, her voluntary surrender, and her co-operation with the Prosecution. In the case of Jokic, the Trial Chamber
relied on his voluntary surrender, the ill health of Jokic’s daughter, the extensive
guarantees from Serbia and Montenegro, and the Prosecution’s conditional consent.

25. The Bench considers that, while under Rule 65(B) of the Rules the seriousness
of the charges against an accused cannot be the sole factor determining the outcome
of an application for provisional release, it is certainly one that a Trial Chamber
is entitled to take into account when assessing whether an accused, if released,
would appear for trial.9 It is evident
that the more severe the sentence which an accused faces, the greater is his incentive
to flee. As the Trial Chamber relied on the seriousness of the charges against Bala
in addition to several other factors, it did not err in taking this factor into
account. There is no suggestion in the decision that the Chamber regarded this factor
as determinative, or sufficient on its own to justify detention. As noted by the
Prosecution, the case at hand can and has to be distinguished from others granting
provisional release and there is no reason why the Trial Chamber should have come
to the same conclusion in this case.

26. For the foregoing reasons, the Bench finds that Ground 3 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under Rule
65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(d) The Trial Chamber failed to consider whether appropriate terms and guarantees
for the granting of provisional release had been provided (Ground 4)

27. According to the Defence, the Trial Chamber erred because, without any indication
to the contrary in the Impugned Decision, it is evident that the Chamber failed
to take into account the onerous and detailed conditions the Defence was proposing
for Bala’s provisional release.

28. The Prosecution argues that the Trial Chamber took notice of Bala’s willingness
to accept all conditions imposed on him if provisionally released. It submits, however, that the Trial Chamber was correct in concluding that Bala’s personal undertakings
could not outweigh other factors militating in favor of pre-trial detention.

29. In exercising its discretion under Rule 65(B) of the Rules, the Trial Chamber
must take into account all the decisive facts of a case. The Trial Chamber took
notice of the submissions of the Defence in its original motion, and of Bala’s personal
undertakings. Weighing these against all the other relevant factors, it reached
the reasonable conclusion that Bala should not be released.

30. For the foregoing reasons, the Bench finds that Ground 4 does not demonstrate
that the Trial Chamber may have erred in the exercise of its discretion under Rule
65(B) - see above paragraphs 5-13 – and, therefore, it is dismissed.

(e) The Trial Chamber erred in not granting an oral hearing (Ground 5)

31. According to the Defence, the Trial Chamber erred in refusing its request for
an oral hearing because there are no cases in the history of the International Tribunal
in which an application for provisional release has been refused “on paper” where
such a hearing had been requested. This rejection, it is claimed, denied the Defence
the opportunity to call important witnesses and make oral representations, and denied
Bala the chance to be heard and to orally offer to adhere to the terms and conditions
of his provisional release. As a result, the Trial Chamber denied the request for
provisional release on “generic grounds”.10

32. The Prosecution submits that the decision whether or not to receive oral submissions
in addition to written submissions is one reserved for the discretion of the Trial
Chamber and that, when requesting an oral hearing, the Defence did not express its
intention to call additional witnesses.

33. The Bench largely concurs with the Prosecution’s submissions. Another bench
of the Appeals Chamber, rejecting an application for leave to appeal in Odjanic
, reasoned as follows:

“CONSIDERING that the right of an accused to be heard is
not similar to what the accused regards as his right to be heard personally;
CONSIDERING that the “right” of an accused, who is represented, to be heard
personally is not unfettered and is subject to the discretion of the Chamber
before which the accused is appearing;
CONSIDERING that Ojdanic has not put forth any cogent reason why he should
have been heard personally in the present case, nor has he shown that the
Trial Chamber abused its discretion when refusing to hear him personally [this
Chamber refuses leave to appeal].11

It follows that the right to be heard personally is not absolute. The granting of
an oral hearing is a matter for the discretion of a Chamber, and it may legitimately
be regarded as unnecessary when, as in the present case, the information before
the Trial Chamber is sufficient to enable the Chamber to reach an informed decision. Finally, the Defence has failed to demonstrate the added value of an oral hearing, namely the reason why if granted, such a hearing could have led the Trial Chamber
to another conclusion.

34. For the foregoing reasons, the Bench finds that the Defence’s arguments under
Ground 5 do not demonstrate that the Trial Chamber may have erred in the exercise
of its discretion under Rule 65(B) of the Rules - see above paragraphs 5-13 – and, therefore, they are dismissed.

IV. Disposition

35. The Bench finds that the Application for Leave to Appeal does not demonstrate
that the Trial Chamber may have erred in the exercise of its powers under Rule 65
(B) and that, therefore, there is no “good cause” within the meaning of Rule 65(
D) for granting leave to appeal. Leave to appeal the Impugned Decision is, therefore, denied.